Selemela and Others v Independent Newspaper Group Ltd and Others

• Jurisdiction: South Africa
• Judge: Kgomo J
• Judgment Date: 01 June 2001
• Citation: 2001 (4) SA 987 (NC)
• Docket Number: 642/2000, 767/2000, 768/2000 and 1364/2000
• Hearing Date: 10 November 2000
• Counsel: D B Spitz for the excipients (second and third defendants). A de Kok for the respondents (plaintiffs).
• Court: Northern Cape Division

Kgomo J:

A. Introduction H

[1] I will refer to the respective parties as cited in the summonses.

[2] On 8 September 2000 I made an order to the effect that the first action instituted by one of the plaintiffs, Elias Selemela, during September 1999 against the three defendants be consolidated with a subsequent action instituted by him against the same I defendants during August 2000 and be determined together.

[3] Currently three matters (the matters referred to in para [2] above now regarded and treated as only one) were brought before me by the defendants. In the first matter second and third defendants seek leave to J

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amend their pleas. In the remaining two matters second and third defendants take exception to the various A plaintiffs' particulars of claim as not disclosing any cause of action. Exceptions are taken in similar terms in all matters. It is accordingly convenient to treat all these matters together in the same judgment.

[4] In the first matter (consolidated as aforesaid) the plaintiff is Elias Selemela (cases Nos 1364/99 and 768/2000), a Deputy B Director-General, Corporate Services, in the Northern Cape Provincial Government. In the second matter Mokhali and four others (case No 767/2000) the plaintiffs' ranks range from Deputy Director to Chief Director. John Block, the plaintiff in the third matter (case No 642/2000) is a Member of the Executive Council (MEC) for Transport, C Roads and Public Works of the Northern Cape Provincial Government.

[5] In each one of the aforementioned matters the plaintiffs have sued the defendants for damages arising from a series of articles published in the Diamond Fields Advertiser D (DFA) which articles are alleged to be defamatory of the plaintiffs. The second defendant is the editor of the DFA and the third defendant is the journalist who wrote all the articles (no fewer than 10 of them) in the 12 claims between October 1997 and July 2000.

[6] The gravamen of the defendants' exception and concomitantly their special plea is that the various plaintiffs must in E their particulars of claim allege and at the subsequent trials prove that the alleged defamatory statements about and concerning them are false. The basis for this differentiation, it was contended by Mr Spitz for the excipients, was that all the plaintiffs are F either politicians or public officials and the articles relate mainly to their fitness for public office and that the contents of the articles are at the heart of the democratic process and the very core of freedom of expression in a constitutional democracy, and further that the articles concern matters of public interest, free and fair political activity and political expression. G

[7] It was further submitted by Mr Spitz that, in view of all the plaintiffs' failure to allege that the offending extracts of the published articles were false, the particulars of claim lacked this necessary averment and were as a result excipiable for want of disclosing a cause of action. H

B. The exception by the second and third defendants to plaintiffs' particulars of claim (the first exception):

[1] The defendants take exception to the particulars of claim in the Selemela matter on the basis that they lack averments necessary to sustain a cause of action and framed its grounds in these I terms:

'1.1

The plaintiff is a politician and/or a public official in the Northern Cape Provincial Government who describes himself, in his particulars of claim, as a major male who is employed by the Northern Cape Provincial Government as Deputy Director-General: Corporate Services. J

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1.2

In his particulars of claim the plaintiff claims damages in the sums of R200 000 and R150 000 respectively for the publication of two A articles on or about 12 July 2000 and 24 July 2000, respectively, which are alleged to contain statements which are defamatory of the plaintiff.

1.3

The statements about which the plaintiff complains relate to B matters of public interest and/or to free and fair political activity and/or to political expression.

1.4

At the time that the article(s) (were) published the Constitution of the Republic of South Africa Act 108 of 1996 (the Constitution) was in force.

1.4.1

Section 2 of the Constitution provides that the Constitution C is the supreme law of the Republic and any law or conduct inconsistent with it is invalid.

1.4.2

Section 16(1) of the Constitution is part of the Bill of Rights and states that:

''Everyone has the right to freedom of expression, which includes: D

(a)

freedom of the press and other media;

(b)

freedom to receive or impart information or ideas;

(c)

freedom of artistic creativity; and

(d)

academic freedom and freedom of scientific research.''

1.4.3

Section 89 of the Constitution provides that any provision of the Bill of Rights: E

1.4.3.1

applies to all law, and binds the judiciary;

1.4.3.2

binds natural and juristic persons if, and to the extent that the provisions (are), applicable, taking into account the nature of the right and the nature of any duty imposed by the right. F

1.5

It follows from ss 2 and 8 of the Constitution that s 16 of the Constitution applies directly to the common-law rules of defamation which regulated the relationship between the plaintiff and the defendants at the time of publication of the statement.

1.6

It is inconsistent with s 16 of the Constitution to permit a G plaintiff, alternatively a plaintiff who is a politician and/or public official, and more particularly an official occupying high office in the Northern Cape Provincial Government as Deputy Director- General: Corporate Services, to recover damages for defamation arising out of the publication of a statement, in circumstances where that plaintiff does not allege and prove the falsity of the statement in question. H

1.7

Alternatively to para 1.6 above, it is inconsistent with s 16 of the Constitution to permit a plaintiff, alternatively a plaintiff who is a politician and/or a public official, and more particularly an official occupying high office in the Northern Cape Provincial Government as Deputy Director-General: Corporate Services, to recover I damages for defamation arising out of the publication of a statement relating to matters of public interest, alternatively to matters of free and fair political activity, further alternatively to political expression, in circumstances where the plaintiff does not allege and prove the falsity of the statement in question. J

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1.8

Alternatively to paras 1.4.2 - 1.7 inclusive above: A

1.8.1

Section 39(2) of the Constitution provides:

''. . . when developing the common law . . . every Court . . . must promote the spirit, purport and objects of the Bill of Rights''.

1.8.2

The development of the common law as contemplated in s 39(2) of the Constitution requires that: B

1.8.2.1

a plaintiff, alternatively a plaintiff who is a politician and a public official, and more particularly an official occupying high office in the Northern Cape Provincial Government as Deputy Director-General: Corporate Services, in an action to recover C damages for defamation arising out the publication of a statement, must allege and prove the falsity of the allegedly defamatory statement upon which he or she founds his or her claim;

1.8.2.2

alternatively to para 1.8.2.1 above, a plaintiff, alternatively a plaintiff who is a politician and a public D official occupying high office in the Northern Cape Provincial Government as Deputy Director-General: Corporate Services, in an action to recover damages for defamation arising out of the publication of an E allegedly defamatory statement relating to matters of public interest, alternatively to matters relating to free and fair political activity, further alternatively to political expression, must allege and prove the falsity of the allegedly defamatory statement upon which he or she founds his or her claim. F

1.9

The plaintiff has not alleged that the statements upon which he founds his claims are false.

1.10

In the premises, the plaintiff's particulars of claim lack an averment necessary to sustain a cause of action based on the publication of an allegedly defamatory statement. G

Wherefore the second and third defendants pray:

That the exception be upheld.

(a)

That the plaintiff's claims be dismissed, further alternatively that the plaintiff be granted leave to amend his particulars of claim within a time period to be determined by the above honourable Court. H

(b)

That the plaintiff's claims be dismissed, further alternatively that the plaintiff be granted leave to amend his particulars of claim within a time period to be determined by the above honourable Court.

(c)

That the plaintiff be ordered to pay the costs hereof.' I

[2] The exceptions in respect of the other matters have been made in essentially similar terms to the Selemela matter. To this end only where the exceptions do not coincide will these be treated separately having regard to the principles involved. The defendants have simultaneously filed special pleas to the plaintiffs' summonses anticipating the exceptions J

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being upheld. In the latter event the special pleas would dispose of the entire actions provided the A plaintiffs cured the alleged defects complained of through appropriate amendments.

[3] The plaintiffs deny that their particulars of claim are excipiable as contended by the defendants. Ms De Kok for the plaintiffs has argued that the exceptions propose a radical departure from the common law so much so that if they are upheld this B would herald a redefinition of the defamation delict and the elements thereof will have to be re-examined and amended.

[4] It is...